Appeal
from the Iowa District Court for Scott County, Stuart P.
Werling, Judge.

The
plaintiffs appeal the district court's denial of their
claim based on the defendants' alleged failure to provide
documents pursuant to the Iowa Open Records Act. AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.

Michael J. Meloy of Meloy Law Office, Bettendorf, and John T.
Flynn of Brubaker, Flynn & Darland, Davenport, for
appellants.

Allen
Diercks and Patricia Lane (the plaintiffs) appeal the
district court's denial of their claim based on the
alleged failure of Davenport City Administrator Craig Malin,
the City of Davenport, and Davenport City Deputy Clerk Jackie
Holecek (collectively, the City) to provide documents
pursuant to Iowa Code chapter 22 (2013) (the Iowa Open
Records Act). For the reasons set forth below, we affirm in
part, reverse in part, and remand.

I.
Background Facts and Proceedings

This
case arises from the City of Davenport's inquiry into
acquiring the Isle of Capri's Rhythm City Casino. On
October 15, 2012, Davenport's Mayor, William Gluba,
executed an agreement with the casino, which enabled the City
to examine the casino's financial and operational
information as part of the City's consideration of
potentially acquiring the casino. The casino agreement was
designated private and confidential by the parties, although
the agreement indicated disclosure of the agreement and the
materials exchanged pursuant to the agreement may be required
under the Iowa Open Records Act.

Also in
October 2012, the Davenport City Council approved a motion
directing Gluba to sign a proposed asset purchase term sheet
with the casino, "to begin [the] formal process which
may lead to [the] City['s] purchase of [the]
casino." The term sheet provided the casino would afford
the City "reasonable access to records and
information" so the City could "conduct a customary
purchaser's due diligence investigation."

In
December 2012, Malin signed a contract with Deloitte &
Touche LLP, in which the parties agreed Deloitte would
perform a due diligence evaluation of the casino. The
Deloitte contract restricted the City's ability to
disclose information it received from Deloitte, while noting
those limitations did not apply where disclosure was required
by a subpoena, court order, regulatory authority, or other
legal process.

The
City hired attorney John Hintze as a legal consultant and
Gary Buettner as a casino-operations expert. Hintze served as
the primary contact for Deloitte during its due diligence
review. On January 9, 2013, Hintze sent an email to Davenport
City Attorney Thomas Warner, Buettner, and a Deloitte
partner, Ayesha Rafique, with an attached legal memorandum
explaining certain due diligence information might be subject
to a public records request.

On
January 21, Rafique executed on behalf of Deloitte a document
entitled "Scope of Services, " which was marked
"Appendix B" to the Deloitte contract and outlined
the services Deloitte would provide the City. This document
was sent to Hintze, Buettner, and Malin.

On
February 18, Rafique sent Warner a bill in the amount of
$207, 900;[1]Rafique also had sent the bill to Hintze
just four days prior. Warner testified he informed Rafique
the City would only pay a final bill at the end of the
transaction. The bill was subsequently cancelled, and Warner
deleted the e-mail containing the February
bill.[2]

In late
February or early March, the City ceased its pursuit of
potentially purchasing the casino. As a result, Deloitte was
instructed to stop working on its due diligence
review.[3]

On
March 12, Deloitte sent an invoice for $387, 500 to the City
for services performed through March 8. The invoice was not
itemized; Warner indicated this was required to protect the
confidential nature of the services performed by Deloitte and
information provided by the casino. Warner stated, "our
outside attorney [(Hintze)] and Gary [Buettner] monitored
[Deloitte's] work for us [(the City)]."

On
April 10, Warner provided Gluba and the city council a
memorandum marked confidential, which stated an alderman
"would like to see a product or report resulting from
the due diligence work undertaken by Deloitte." Warner
wrote, "The request cannot be readily accommodated due
to the nature of the due diligence work and the
confidentiality agreements executed by the City between
Deloitte and the [casino]." The memorandum further
stated, "Deloitte provided financial preacquisition due
diligence and advice and recommendations . . . . [which]
w[ere] coordinated with the legal work of [Hintze's law
firm], and the operational review and recommendations of
[Buettner]." Warner concludes "[a]s the Asset
Purchase Agreement negotiations were iterative, there is no
single concluding product or report to produce."

On
April 11, the plaintiffs served a public records request on
the City, [4]pursuant to Iowa Code chapter 22,
summarized as follows:

• The engagement letter with Deloitte and attachments,

• All e-mails (and attachments), memorandums, letters,
or correspondence between Malin and Deloitte
regarding the due diligence services,

• All e-mails (and attachments), memorandums, letters,
or correspondence between Warner and Deloitte
regarding the due diligence services.

In
response, the City produced documents on April
22.[5]
It is undisputed this production did not include a copy of
the Deloitte Scope of Services document, despite the
plaintiffs' request. When responding to the request, the
City made no claim of confidentiality, privilege, or
exemption.

The
plaintiffs served an additional public records request on
April 24 summarized as:

• All invoices and itemized statements detailing the
hours spent and the services provided by Deloitte,

• All e-mails between Malin and Deloitte,

• Copies of all reports, letters, analysis, or other
information received from Deloitte on the casino
deal.

The
City responded with documents on May 3 and again made no
claim of confidentiality, privilege, or exemption for
undisclosed materials. It is undisputed, however, that the
City did not produce the invoice received ...

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